(Super. Ct. No. 07F10270)
The opinion of the court was delivered by: Robie , J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Tamekca Walker guilty of second degree murder and assault on a child with force likely to produce great bodily injury resulting in death. She was sentenced to state prison for 25 years to life.
On appeal, defendant contends: 1) the court committed prejudicial error by admitting photographs of the 18-month-old victim's severe post-mortem diaper rash; 2) her incriminating statements to police officers should have been suppressed as involuntary; 3) the People failed to prove the corpus delicti on both counts; 4) her sentence constituted cruel and unusual punishment; and 5) cumulative error. We affirm.
The child victim was born on April 23, 2006. She tested positive for cocaine at birth, and Child Protective Services (CPS) placed her in protective custody. The child lived in six different homes between April 2006 and September 2007. Her last foster placement was with defendant, who had two additional foster children, and provided day care for other children.
The child had diaper rash and a history of mild asthma. Defendant was given creams to treat the rash but nothing for the asthma.
Janna Thoftne, a social worker for CPS, visited defendant's home on October 17, 2007. Defendant told her she used the cream and the diaper rash cleared up after two weeks. Thoftne observed that the child alternated between nonresponsiveness and inconsolable crying. Defendant said the child would stop crying when picked up but her day care responsibilities prevented defendant from carrying her all the time. She had thought about returning the child.
Shirley Jackson sent her two sons to defendant for day care. Defendant told Jackson that the child victim had a bad diaper rash, and she had to constantly change her diapers. She said it was probably not a good idea to keep her in light of her crying and that she had told CPS to take the child back.
Sierra Cotton used defendant's baby-sitting services for her son. Defendant told her the child victim was more distant than the other children and did a lot of crying. Defendant said she called CPS to get help because the child was always crying. She also told Cotton that the child had some kind of skin rash.
Sacramento Police Officer Sean Cunningham was dispatched to defendant's home on October 22, 2007. When he arrived at 6:27 a.m., firefighters were administering CPR to the child. Defendant said she woke up at 6:15 a.m. and found her lying face down in the crib. She would not wake up and her fingernails were purple, so defendant called 911.
Thoftne received a voice mail from defendant on October 22, 2007. Defendant was crying hysterically and said something happened to Tamaihya, who was being taken to the hospital. Thoftne called defendant around 10:15 a.m. Defendant told her that she called 911 after checking on Tamaihya, who was warm, but had purple fingernails.
Sacramento Police Officer Tracy Joseph also responded to the dispatch call. Defendant was on the phone leaving a message; she appeared to be making faces, as if she was forcing herself to cry. Her demeanor became normal when she talked to Officer Joseph.
Officer Joseph learned that defendant had three foster children: every night she would set out clothing for the children to wear the following day. Officer Joseph noticed clothing was set out only for the two other foster children.
Defendant told Officer Joseph that she found the child unresponsive, face down in her crib. She shook the child, turned her over, and saw that her fingertips were purple and she had dark-colored lips. Defendant then administered CPR to the baby. She rarely made eye contact with Officer Joseph during their conversation.
The child was pronounced dead at the emergency room that morning. The pathologist did not know exactly how she died but was of the opinion that the cause of her death was "Probable asphyxia by smothering." She died at least three hours before the emergency workers saw her at 6:30 a.m.
According to the pathologist, a child like the victim could be smothered by placing a hand over her mouth and nose; bruising about her face led him to believe she was smothered. It would take three to five minutes to asphyxiate a child in this manner. The child also sustained numerous bruises about her face, head, and abdomen -- injuries which were not consistent with an accident.
Defendant gave several formal interviews with the police in the three days following the child's death: a 30-minute interview at her home the morning of October 22, followed by a 90-minute interview at the police station that afternoon, interviews with two detectives totaling five hours at the police station on October 23, and a police station interrogation on October 24 lasting a few hours.
During the October 23 interviews, defendant admitted the child died around midnight, rather than 6:00 a.m., as she originally claimed. She administered CPR on her around midnight, but did not revive her. Defendant panicked for several hours before calling 911 around 6:00 a.m.
On October 24, defendant said she placed her hand over the child's mouth to stop her crying. Her hand remained over her ...